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Memorandum
TO: Professor Siegel
FROM: Kevin Firth
DATE: July 25, 2013
RE: Jane Doe & Judy Roe Case
Questions Presented
I. The Michigan Adoption Statute § 710.24(1) restricts adoption to single individuals or legally
married couples. Michigan Constitution Article I, § 25 defines marriage as one man and one
woman. Jane and Judy are same-sex partners. They each have children they have adopted
individually. They now wish to jointly adopt their children. Does the statute violate the equal
protection clause Article I, § 2 of the Michigan State Constitution? If so, would a Michigan court
award Jane and Judy a declaration of relief?
II. Should the courts in Michigan interpret the language of the adoption statute to allow Jane and
Judy to adopt each other's children?
III. Which court in Michigan has jurisdiction to hear their case?
Brief Answers
I. No. Based on the three tests used to evaluate an Equal Protection violation, the Court would
most likely use a rational basis test. Under Rational Basis, the State only has to provide a
rationale basis for the classification.
II. Yes. Based on the Michigan statute and persuasive precedent the court should interpret the
statute to allow our clients to adopt their children.
III.The Circuit Court of Michigan has jurisdiction to hear this case.

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Statement of Facts
Jane Doe and Judy Roe are same-sex partners living in Michigan. They have three
adopted children between them: a daughter, adopted by Jane; and twin boys, adopted by Judy.
Jane and Judy would like to be a family; they each want to adopt all the children so that all three
children have two legal parents. They have filed a case in federal court. They have asked us to
prepare a case for state court.
Applicable Codified Law
Mich. Const. Art. I, § 2
No person shall be denied the equal protection of the laws; nor shall any person be denied
the enjoyment of his civil or political rights or be discriminated against in the exercise
thereof because of religion, race, color or national origin. The legislature shall
implement this section by appropriate legislation
Mich. Const. Art. I, § 25
To secure and preserve the benefits of marriage for our society and for future generations
of children, the union of one man and one woman in marriage shall be the only
agreement recognized as a marriage or similar union for any purpose
Mich. Const. Art. 6, § 13.
The circuit court shall have jurisdiction over all matters not prohibited by law. . .
Mich. Comp. Laws Ann. § 710.24 (1) (West 2013)
. . . if a person desires to adopt a child . . . with the intent to make the adoptee his or her
heir, that person, together with his wife or her husband, if married . . .
Mich. Comp. Laws Ann. § 722.23 (3) (West 2013)
. . . “best interests of the child” means the sum total of the following factors to be
considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in
his or her religion or creed, if any.

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(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
. . .
Mich. Comp. Laws Ann. § 551.1 (West 2013)
Marriage is inherently a unique relationship between a man and a woman. As a matter of
public policy, this state has a special interest in encouraging, supporting, and protecting
that unique relationship in order to promote, among other goals, the stability and welfare
of society and its children. A marriage contracted between individuals of the same sex is
invalid in this state.
Discussion
I. The Michigan Adoption Statute § 710.24(1) restricts adoption to single or legally married
adults; excluding unmarried co-habitants and same-sex partners. Michigan Constitution Article I,
§ 25 defines marriage as one man and one woman. Jane and Judy are same-sex partners. They
each have children they have adopted individually. They now wish to jointly adopt their
children.Does the statute violate the equal protection clause Article I, § 2 of the Michigan State
Constitution entitling Jane and Judy a declaration of relief?
Jane Doe and Judy Roe, our new clients, have asked us to determine what causes of
action they can bring and in which court. Both clients have children they have adopted and now
wish to adopt jointly, so they can be a family. The general presumption is that the Michigan
Adoption Code prohibits same-sex couples from adopting. If so, they would like to determine if
the Michigan Adoption Code violates the Equal Protection clause of the Michigan Constitution
which states that no person shall be denied equal protection or rights under the law. Michigan
law is unsettled about what fundamental rights children have and has not addressed at all if
adoption is a fundamental right for parents. The three standards of review that a court will use to
evaluate an equal protection challenge are rational basis, heightened scrutiny, and strict scrutiny.
Jane and Judy are a same-sex couple who are not allowed to legally marry in the state.
The outcome of an equal-protection challenge to the Adoption Code will depend on which

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standard of review the court uses. The court will most likely apply rational basis and the claim of
equal protection will most likely fail. Because, under this standard, the state will need only show
a rational reason for the rule.
In Doe v. Department of Social Services, the Michigan Supreme Court explains how to
evaluate an equal-protection claim. 439 Mich. 650, 487 N.W.2d 166. The Court identifies three
standards for evaluating legislation to test for an equal protection violation: (1) rational basis, (2)
heightened scrutiny, and (3) strict scrutiny. The tests used by the Michigan Supreme Court are
similar to the ones used by the United States Supreme Court.
The Court explains that all legislation is presumed constitutional and is reviewed using a
rational basis standard. Under the rational basis standard, a state law will not be struck down if
the purpose of the law is rationally related to a legitimate government purpose. Strict scrutiny
will be applied if the classification is based on race or deprives a person of a fundamental right.
Under the strict scrutiny test, the Court will uphold the law only if the state can demonstrate that
the classification or discrimination of the law is tailored specifically to further a compelling
governmental interest. Under heightened scrutiny, the Court requires the law to further a
substantial government interest. The heightened scrutiny test is usually applied to classifications
based on gender or mental capacity.
Recently, the Court of Appeals of Michigan offered a substantive explanation of
heightened scrutiny or middle-tier review. In Rose v Stokely, the Court of Appeals of Michigan
explained that under the heightened scrutiny review there must be two determinations made to a
challenged law alleging an equal protection violation. 258 Mich App 283, 673 N.W.2d 413
(2003). The suspect classification must (1) serve an important government interest and (2) is
substantially related to or necessary to achieve that interest.

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In Bettelon v Metalock Repair Serv, the Court of Appeals of Michigan held that it was a
violation of an illegitimate child's equal protection rights to deny him or her death benefits while
allowing a legitimate child to collect. 137 Mich. App 448, 358 N.W.2d 608 (1984). The Court
reasoned that a child should not be denied a benefit just because his parents were not married
when he was born. Public policy would also not favor such a classification leading to such an
unequal treatment of children based on circumstances out of their control. Besides this case, very
few court cases in Michigan address the issue of fundamental rights of children. None address
whether there is a fundamental right to adoption. Persuasive precedent from other states offers
some guidance.
In Fla. Dep't of Children & Families v. X.X.G., the Court of Appeal in Florida held that a
state statute that expressly banned all gay adoptions violated the equal protection provision of the
state’s constitution. 45 S. 3d 79 (Fla. App. 2010). The Court used the rational basis test in
reviewing the challenge to the statute. It stated the statute must show a real difference between
the suspect class that is reasonably related to the purpose of the law. The statute calls for an
individual evaluation of all adoption cases except those by homosexuals. The statute allowed all
others to be considered—singles and straight couples. The court reasoned that because of this
categorical exclusion, the statute violated the equal protections of the homosexual parents. In its
holding, the Court ruled only on the claims of equal protections of the parents, not the children.
A year after this case was decided; the Supreme Court of Arkansas addressed a similar
statute. In Ark. Dep't of Human Servs. v. Cole, the Supreme Court of Arkansas heard a challenge
to a recent ballot initiative (Act 1) limiting who could adopt in the state. Act 1 prohibited
adoption by individuals who were living as sexual partners outside of a marriage recognized by
the state. 380 S.W.3d 429 (Ark. 2011). The state only recognizes marriage between a man and a

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woman. The effect of Act 1 prohibited both same-sex and unmarried opposite-sex cohabitants
from adopting or fostering a child. The defendants in the case alleged that the amendment
violated the equal protection and due-process rights of the children of unmarried cohabitating
partners. The violations included a child's right of access to a suitable home, failure to serve the
best interests of the children of co-habitants and children in state custody, and a burdening of
family integrity.
The Supreme Court of Arkansas invalidated the amendment and held that the amendment
was a significant burden on the fundamental right of sexual privacy to unmarried cohabitating
partners. Because the court determined the right of sexual privacy was fundamental, the court
used heightened scrutiny to review the challenge. The court explained that the compelling state
interest was to protect the children and their interests. The court reasoned that the ban on all
cohabitating partners from adopting was not narrowly tailored to achieve the state’s interest
because there were other ways--individualized assessments of cases--the state could have
achieved its goal.
In summary, Michigan law will apply one of three standards of review for an equal
protection challenge to a law: rational basis, heightened scrutiny, or strict scrutiny. When the
suspect class is a child, they cannot be treated differently than other children based solely on
their parent's marital status. As applied by other jurisdictions, a law that discriminates on its face
by categorically excluding one class cannot survive rational basis review when there are other
ways of achieving its intended goal. And a law that interferes with the private sexual lives of
individuals will be evaluated under strict scrutiny and will not survive.

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Jane and Judy wish to adopt their children jointly but they cannot because the law
presumably will not allow an unmarried couple to adopt. Such a law would deny the children the
financial benefits of having married parents.
In this challenge, the state of Michigan must articulate a legitimate government interest
that is reasonably related to the law excluding unmarried couples from adopting. The state would
most likely cite financial, moral, and the best interests of the children as reasons for such a law
that has a discriminatory effect. As explained in Doe, when the court applies rational basis, the
law will survive if the state can articulate a legitimate state interest for the classification. If the
Court applies strict scrutiny the suspect classification must further the state’s articulated interest;
most laws will not survive a review under strict scrutiny. The court in Rose explained that when
heightened scrutiny is applied the law would survive if the state can articulate no legitimate state
interest and the suspect classification is rationally related to achieve that interest.
Even though the court explained in Bettelon that a child could not be deprived of the
same rights that another child would be entitled to because of his parent's marital status, the state
can most likely articulate a reason for the classification that would satisfy the rational basis
review. The two leading cases on the issue from Arkansas and Florida are distinguishable from
our case. In Fla. Dep't of Children, the court held using (rational basis review) that the law
violated the equal protection of the parents because it was discriminatory on its face. The law
expressly banned all homosexuals from adopting. The Adoption Code in Michigan does not go
this far in its limits on adoption; instead, its prohibitions are made by inference. In Ark. Dep't of
Human Servs, there were multiple claims of equal protection violations for the parents and the
children. But the Court ultimately struck down the law based on the fundamental right of sexual
privacy. The law prohibited cohabitating sexual partners (gay or straight) from adopting. There is

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nothing in the Michigan Adoption Code that would lead to a claim or ruling that it violates our
client's sexual privacy.
Therefore, the most likely outcome would be the Court using the Rational Basis review
for an alleged equal protection violation brought on behalf of our clients. Under this review and
the language in the statute, the state of Michigan will be able to articulate a reasonable
government interest for the suspect classification.
II. Should the courts in Michigan interpret the language of the adoption statute to allow Jane and
Judy to adopt each other's children?
Jane and Judy would like to jointly adopt their kids to become a family. Under Michigan
law, the Adoption Code must be strictly construed. The statute must be evaluated as a whole to
determine the legislative intent. Other states have interpreted statutes using both liberal and strict
construction. The Michigan Statute should be interpreted to allow our clients to adopt.
There is pending legislation, House Bill 4060 Mich. H.4060, 97th Legis. Reg. Sess. (Jan.
22, 2013), in the Michigan House of Representatives that seeks to change the Michigan Adoption
Code to expressly allow same-sex partners to adopt. To find out the bill’s current status I emailed
Representative Jeff Irwin, who introduced the bill in January of 2013. Representative Irwin said
the bill is currently in the House Families, Children, and Seniors committee but has not been
scheduled for a vote.
Rep. Irwin further stated that:
The committee chair, in consultation with the Speaker of the House, ultimately
determines whether a bill gets a hearing or not. While the committee chair indicated
earlier this year that he wants to focus on adoption and foster care issues, however he has
not made any indication that my bill will have a hearing . . . this issue continues to be
a terrible injustice for thousands of children in our state". Rep. Jeff Irwin. Email from

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Rep. Jeff Irwin, Mich. House Rep District 053, House Bill 4060 (Jul. 29, 2013, 1:26 p.m.
EDT) (copy on file with Cooley.edu server).
Until this legislation or any other legislation is passed to clarify the intent of the legislature on
this issue—statutory interpretation is needed by the courts.
In In re MKK, the Court of Appeals of Michigan listed four steps of statutory
interpretation to determine the legislative intent. To determine the intent, the Court must (1) look
to the statute itself, (2) read the statute as a whole, (3) consider the statute in tandem with other
relevant statutes, and (4) ensure the statute works in accord with the law or scheme as a whole.
286 Mich App 546; 781 NW2d 132 (2009).
The leading case interpreting Mich. Comp. Laws Ann. § 710.24 (1) is In re Adams, 189
Mich. App. 540, 473 N.W.2d 712 (1991). In Adams, the Court of Appeals of Michigan held that
the language of Mich. Comp. Laws Ann. § 710.24(1) prohibited the petition of the divorced
parents to adopt their adult daughter. In its decision, the Court applied the rule that the provisions
in adoption code must be strictly construed. Using this rule they reasoned that it is inconsistent
with the statute to allow the two unmarried parents to adopt their adult daughter.
Michigan case law pertaining to same-sex adoption is very limited. In Usitalo v. Landon,
the Court did not rule on the merits of the argument that the Michigan Adoption Code prohibits
same-sex adoption. But the court stated that the trial courts in the family division have subject
matter jurisdiction to grant a same-sex adoption. 299 Mich. App. 222, 829 N.W.2d 359 (2012).
See Hansen v McClellan, Unpublished, 2006 WL 3524059 (Mich. Ct App. December 7, 2006)
(same); see also Giancaspro v. Congleton, Unpublished, 2009 WL 416301 (Mich. Ct App
February 19, 2009) (noting Michigan's legal framework for protecting and promoting the best
interests of children within its jurisdiction does not exclude children with parents who could not

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have adopted them under Michigan law). Other than these few cases, Michigan courts have not
directly addressed whether a same-sex or unmarried couple could adopt under the state's
adoption code. Persuasive precedent from other states with similar statutes offers some guidance
on the issue.
In Adoption of Tammy, the Supreme Judicial Court of Massachusetts interpreted the state
adoption statute to allow a same-sex couple to petition for adoption. 619 N.E.2d 315 (Mass.
1993). The court justified its holding by stating that Mass. Gen. Laws Ann. ch. 210, § 1 did not
prohibit the action. The MA statute states, "No petition by a person having a lawful wife shall be
allowed unless such wife shall join therein, and no woman having a lawful husband shall be
competent to present and prosecute such petition." Mass. Gen. Laws Ann. ch. 210, § 1.
In the case In re Adoption of B.L.V.B., , the Supreme Court of Vermont interpreted the
state adoption statute to allow a same-sex couple to petition for adoption. 628 A.2d 1271 (Vt.
1993). The court justified its holding by stating that the statute did not prohibit the action. The
statute reads: “A person or husband and wife together, of age and sound mind, may adopt any
other person as his or their heir. . .” Vt. Stat. Ann. tit. 15, § 431.
Another provision states, “The natural parents of a minor shall be deprived, by the
adoption, of all legal right to control of such minor, and such minor shall be freed from all
obligations of obedience and maintenance to them.... Notwithstanding the foregoing provisions
of this section, when the adoption is made by a spouse of a natural parent, obligations of
obedience to, and rights of inheritance by and through the natural parent who has intermarried
with the adopting parent shall not be affected.” Vt. Stat. Ann. tit. 15, § 488.

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The court explained that if the statute’s language were applied as it reads, then the only
way a same-sex couple could adopt would be for the birth parent to lose all her rights to the
child. Such a decision, the court states, were not in the best interest of the child.
In the case In re K.M., the Appellant Court of Illinois explained that a strict reading of the
state adoption statute, 750 Ill. Comp. Stat. Ann. 50/2, prohibited same-sex couples to petition for
adoption. 653 N.E.2d 888 (Ill. App. 1995). The statute reads: “A reputable person of legal age
and of either sex, provided that if such person is married, his or her spouse shall be a party to the
adoption proceeding, including a husband or wife desiring to adopt a child of the other spouse, in
all of which cases the adoption shall be by both spouses jointly.” 750 Ill. Comp. Stat. Ann. 50/2.
The statute also states, “This act shall be liberally construed, and the rule that statutes in
derogation of the common law must be strictly construed shall not apply to this act.” 750 Ill.
Comp. Stat. Ann. 50/2.
The Court applied a liberal interpretation to the statute’s language to allow the couple to
petition for adoption. The court reasoned that, since the 1867 statute, there have been numerous
amendments that have never expressed or inferred that same-sex couples were prohibited to
adopt under the statute. The court also reasoned that a construction of the statute that excluded
all unmarried persons from adopting does not fall within the best interests of the child standards
of the adoption statute.
Another state with a similar provision in its adoption statute—to be liberally construed—
is New Jersey. The adoption statute in New Jersey, N.J. Stat. Ann. § 9:3-43, permits any person
to petition for adoption provided that they are married and the action is brought jointly with their
spouse. In the case In re Adoption of Two Children by H.N.R, the Superior Court of New Jersey
allowed a woman to adopt the biological children of her same-sex partner under the state's

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stepparent provision. 666 A.2d 535 (N.J. Super. 1995). The court reasoned that the statute did
not expressly prohibit same-sex adoptions, and permitting the adoption would serve the best
interests of the child.
Like the Code in Michigan, New York's adoption code, N.Y. Dom. Rel. Law § 110,
requires strict construction. The New York adoption code limits adoption to "an adult unmarried
person or an adult husband and his wife together may adopt." N.Y. Dom. Rel. Law § 110. In the
case In re Jacob, the Court of Appeals of New York evaluated the state’s adoption code and
determined that a same-sex or unmarried couple were not prohibited to petition for adoption. 660
N.E.2d 397 (N.Y. 1995).
In its reasoning, the court analyzed the word together that opponents of same-sex or
unmarried adoption use as the justification for the restriction. This statute almost mirrors the
language and joint use of the word together of the Michigan Adoption Code. The Court
explained—under strict construction—that the use of the word together only described the
actions of a married couple and did not preclude unmarried or same-sex couples from adopting.
The statutory together was to ensure that a married person who petitions for adoption must do so
with their spouse.
Courts in other states have interpreted their adoption statutes—that require marriage—to
prohibit unmarried or same-sex partners to adopt. Kentucky's Adoption code, Ky. Rev. Stat.
Ann. § 199.470, states, "If the petitioner is married, the husband or wife shall join in a petition
for leave to adopt a child unless the petitioner is married to a biological parent of the child to be
adopted, except that if the court finds the requirement of a joint petition would serve to deny the
child a suitable home, the requirement may be waived". Ky. Rev. Stat. Ann. § 199.470. In
S.J.L.S. v. T.L.S., the Court of Appeals of Kentucky held—under strict construction

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requirement—that the statute’s waiver exception did not allow same-sex or unmarried couples
the right to petition for adoption. 265 S.W.3d 804 (Ky. App. 2008).
Oklahoma's Adoption Statute, Okla. Stat. Ann. tit. 10, § 7503-1.1, prohibits same-sex
couples from adopting, but does not expressly prohibit unmarried couples. The statute’s text
reads "The following persons are eligible to adopt a child: A husband and wife jointly . . . An
unmarried person . . . ; or . . . A married person . . . who is legally separated from the other
spouse" Okla. Stat. Ann. tit. 10, § 7503-1.1. In the case In re Adoption of M.C.D., the Court of
Civil Appeals of Oklahoma held that it would not interpret the adoption statute to allow a
recently divorced couple to jointly petition for an adoption. The court reasoned—under strict
construction—that the legislative intent and the best interest of the child would not be met by
allowing the unmarried couple to adopt the child. 42 P.3d 873 (Okla. App. Div. 3 2001).
In summary, the Michigan adoption statute must be interpreted by looking to the intent of
the legislation, and reading the statue as a whole. Two unmarried people cannot adopt an adult
child. Other states have interpreted their statute’s so that there should be weight given to statutes
that do not expressly prohibit individuals from adopting. There is a significant difference
between states that use a liberal constriction and those that use a strict construction.
The leading case on this issue, In re Adams, is distinguishable from our client's situation
and should not govern its application. That case involved two divorced parents who wanted to
jointly adopt their adult daughter. Our case involves a situation that is more in line with what the
best interest of the child would be and how they should be applied. As shown by the string of
procedural cases, Usitalo, Hansen, and Giancaspro, Michigan courts have already shown they
are not going to categorically deny a same-sex couple from having a legal adoption in the state.
The Massachusetts Court looked beyond the direct language of its Adoption Statute in Adoption

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of Tammy and determined that the since the law did not expressly prohibit the same-sex adoption
it should be allowed.
The Vermont court in In Re Adoption of B.L.V.B., interpreted its adoption statute to allow
a same-sex adoption by looking at the statute as a whole and how it functioned with the section
pertaining to the best interests of the child. When looking at the who-may-adopt section, Mich.
Comp. Laws Ann. § 710.24, the court must also cross reference the section with the best interest
of the child section, Mich. Comp. Laws Ann. § 722.23. A Michigan Court would most likely
make the same determination. Not allowing Jane and Judy to adopt their children jointly would
be in direct conflict with the best interest of the child section of the Adoption Code. Both the
Illinois case, In re K.M. and the New Jersey case, In re Adoption of Two Children by H.N.R. and
their governing statutes are distinguishable from our clients because both states adoption codes
require that they should be liberally construed.
The Kentucky and Oklahoma statutes and their fellow cases are also distinguishable from
Michigan's Adoption Code. The Kentucky case S.J.L.S. v. T.L.S, was decided based on a
challenge to the Adoption Code's waiver clause. The Michigan Adoption Code contains no such
waiver clause. The Oklahoma case, In re Adoption of M.C.D., is governed by an adoption statute
that is directly discriminatory on its face against homosexual adoptions; which is now
questionable after the ruling in Fla. Dep't of Children & Families. The Michigan statute does not
expressly prohibit same-sex couples from adopting.
The state statute most analogous to Michigan’s is New York's Adoption Code. The
language in the code almost mirrors the Michigan Adoption Code with its use of the term
together as the base’s for same-sex adoption challenges. Further, it requires that the statute be
strictly construed during interpretation. In In Re Jacob, the New York Court held that the term

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together was not a limitation on who could adopt but a description that pertained only to a
married couple. That same distinction and explanation of the term together should be adopted by
the Court in Michigan.
Therefore, based on the statute being evaluated as a whole and with the correct
interpretation of the term together, the Michigan Court should interpret the Michigan Adoption
Code to allow Jane and Judy to adopt their children.
III. Which court in Michigan has jurisdiction to hear their case?
According to Mich. Const. Art. 6, § 13: The circuit court shall have jurisdiction over all
matters not prohibited by law. Therefore, this action should be brought in the Circuit Court in
Lansing against the State of Michigan.
Conclusion
Under Mich. Comp. Laws Ann. § 710.24 (1), a person who is not married presumably
cannot adopt a child. This applies to all unmarried couples. Michigan has some binding
precedent on the issue but has very limited interpretation of the issue as it pertains to same-sex
couples. Michigan also has very little precedent on the issue of whether the right to adopt is
fundamental or what a child's rights are in an adoption and if they are fundamental. Jane and
Judy are a same-sex couple who would like to jointly adopt their children, so they can be a
family.
I would not recommend bringing an Equal Protection action against the state challenging
the Michigan Adoption code. Of the three tests used to evaluate the law, the rational basis test
would be the one most likely used. Rational Basis is favored for the state and allows a
presumption of constitutionality for a law as long as the state can show a rational relationship
between the suspect classification and the interest the government seeks to protect. Very rarely

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will a state lose a Rational Basis challenge. The Florida adoption statute was struck down on
Rational Basis review because it was discriminatory on its face; the Michigan Statute is not. The
Arkansas Adoption Statute was struck down under Heightened Scrutiny because of a violation of
the right to sexual privacy; the Michigan Statute does not violate this right.
I would recommend we bring a cause of action to the Circuit Court asking for an
interpretation of the statute to allow same-sex couples to adopt. There is no binding precedent for
the interpretation. There is, however, very persuasive precedent from other states, New York
being the most favorable and most analogous. This presents an opportunity for our firm to not
only help our clients but the thousands of families across the state who would benefit from this
interpretation.